Ferguson, Missouri, erupts into violence following the grand jury decision

The non-indictment of officer Darren Wilson suggests that at least four members of the 12-person grand jury considering his case did not believe that Michael Brown stopped and surrendered with his hands up after fleeing a struggle at Wilson’s SUV, as several witnesses and protesters in Ferguson have always claimed.

Wilson was entitled under Missouri law to use deadly force against Brown for two main reasons: if he believed that Brown posed him or others a threat of death or serious injury, or if he believed that Brown was trying to escape and that if he got away he would pose that same threat of death or serious injury.

But neither of these fits accounts given to the media by Dorian Johnson, the friend who was with Brown when Wilson stopped them for jaywalking around noon on 9 August, and several other people who said publicly that they had seen the shooting of the 18-year-old unfold moments later on Canfield Drive.

Johnson, along with other witnesses such as Tiffany Mitchell, Piaget Cranshaw and an unidentified tree worker, all said that after stopping further along the street after fleeing the vehicle, and turning to face Wilson, Brown took a stance that would later be immortalised in the “hands up – don’t shoot” slogan of protests over his death.

It is difficult to see how the grand jury could have avoided charging Wilson with a crime if nine out of 12 of them – the number of votes required for any indictment – had accepted this version of events, rather than an alternative given by the 28-year-old police officer that was also reportedly supported in court by more than half a dozen unidentified witnesses.

Defence of life

Missouri law states that anyone, including a police officer, may use deadly force against someone else if “he or she reasonably believes” this is “necessary to protect himself, or herself or her unborn child, or another against death, serious physical injury, or any forcible felony”. Similar state laws, rooted in English common law, are in place around the US.

Police chiefs said in the days after the shooting that Brown assaulted Wilson during a struggle at the Chevy Tahoe the officer was driving. The officer reportedly told federal investigators Brown “punched and scratched him repeatedly, leaving swelling on his face and cuts on his neck” while groping for his pistol. Forensic evidence indicates that Brown was shot in the hand at close range.

But Brown then fled, and eventually died a significant distance from Wilson’s vehicle. A pair of autopsyreports concluded that Brown was shot five to seven more times in the front, meaning that he must have turned to face the officer. So for Wilson to justify shooting Brown repeatedly in terms of self-defence, he needed to persuade jurors that having turned around, Brown once again threatened to do him physical harm.

A friend of Wilson told the Guardian in August the officer’s version was that Brown began charging towards him and would not stop, even after shots were fired. Brown did not halt until suffering a mortal wound to the head, according to this account. “He just kept coming,” the friend said, characterising Wilson’s recollection of the shooting.

David Klinger, an associate professor of criminology at the University of Missouri-St Louis and an authority on police shootings, said the autopsy evidence could have been seen to support Wilson’s account – specifically, that the fatal bullet to the apex of Brown’s head travelled downwards, suggesting a “body tilted forward from the waist”. Klinger said: “It’s not necessarily evidence that he was charging. But it is evidence that suggests he wasn’t standing still with his hands up.”

The Brown family’s attorneys said this wound suggested the 18-year-old bowed his head instinctively because he was being shot at. But Dr Michael Baden, the former New York City chief medical examiner who carried out the family’s own independent autopsy, said the fatal wound “could be consistent” with Brown charging. “It’s possible,” Baden said in August.

If convinced of Wilson’s basic account, however, jurors would also have needed to conclude that Wilson “reasonably” believed deadly force was necessary to stop Brown. Several factors would have been considered. “One would have been Brown’s size and Wilson’s size,” said Klinger. “If Mike Brown had not been 6ft 4in, almost 300lbs, and was instead 5ft 5in and weighed 110lbs, would it have been reasonable for a police officer to shoot him while he ran at the officer with nothing in his hands? Probably not.”

Another factor would have been the severity of injuries Wilson had already sustained. “If an officer is already injured, he is not reasonably going to sit there and let a guy beat him because he can’t use anything but his gun to defend himself,” said Klinger. Protesters have pointed to a purported photograph and surveillance footage of Wilson in the hours after the shooting in which he did not appear to have suffered serious injuries.

Ultimately, police officers are given broad latitude to defend their use of force as “reasonable” under the fourth amendment of the US constitution. The key supreme court ruling on the subject, Graham v Connor (1989), held that the calculation of reasonableness “must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation”. Delivering the court’s opinion, chief justice William Rehnquist said reasonableness “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight”.

What kind of flight?

Assuming he had convinced jurors that Brown assaulted him at the SUV, an alternative justification Wilson might have used for using deadly force, even as Brown tried to flee, was that he reasonably believed doing so was necessary to keep Brown from escaping and hurting others.

If, in fact, Brown did assault Wilson or try to disarm him in the SUV, “that would be a violent felony by any stretch of the imagination”, said Klinger. “Now he takes off running. Depending on a whole host of circumstances, it could have been reasonable for Wilson to shoot at Brown while he was fleeing.”

A sound recording from near the scene indicates that 11 shots were fired in all. According to official documents and leaked testimony, two were fired in Wilson’s SUV and six or seven struck Brown. This could mean that two or three shots that missed were fired by Wilson at Brown as he fled, and before he turned to face the officer.

Once, many American jurisdictions adhered to the so-called “fleeing felon” rule. This rule, also rooted in English common law, comes from a time when all felony crimes were punishable by death, and so the assumption was that any fleeing felon would fight to the death to avoid capture, justifying the use of deadly force to apprehend him.

But in the case of Tennessee vs Garner (1985), the US supreme court ruled that police can use “deadly force to prevent the escape of an apparently unarmed suspected felon” but only when “necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” On paper, Missouri law still goes beyond this, and retains the fleeing felon rule, but that statute is overridden by the supreme court’s decision.

Klinger said the Ferguson grand jurors would have needed to consider the “totality of circumstances”, adding: “Could he have chased him and called for additional units and capture this guy, because he’s unarmed?”

In any case, it appears Brown stopped and turned. “Now it became a self-defence issue again,” said Klinger. The onus would then have been on Wilson to explain how he again came under serious threat from a belligerent Brown. If, however, Brown surrendered and raised his hands, then he could not reasonably be viewed to have posed a threat or to have been fleeing.

“Things shift and change,” said Klinger. “What would be lawful at one moment might not be lawful another moment. But then something else might change to make it lawful again.”